Clark v ING Life Limited

In the case of Clark v ING Life Limited, the plaintiff, Mrs Clark, sought to discontinue her claim against the defendant, Adept, without prejudice, under the rules of court. Mrs Clark had previously been involved in a dispute with ING Life Limited over the denial of a life insurance claim due to the diagnosis of breast cancer. Adept, who assisted Mrs Clark in applying for the insurance policy with ING, was subsequently joined as a defendant in the proceedings. Adept opposed the application to discontinue, arguing that the costs incurred by Mrs Clark in the proceedings should be paid by her as the discontinuing party. The court was tasked with determining whether leave to discontinue should be granted and, if so, whether the plaintiff should be required to pay the defendant's costs.

The primary legal issue before the court was whether Mrs Clark's application to discontinue her claim against Adept should be granted without prejudice and whether she should be ordered to pay Adept's costs. The court considered the discretionary nature of the application and whether there were any special circumstances that would warrant a departure from the usual rule that a discontinuing party pays the other party's costs. The court also considered whether the proceedings would have been unnecessary if Suncorp, another insurer, had been sued or if section 54 of the Insurance Contracts Act had been properly applied.

The court found that the application for leave to discontinue was not an admission of likely defeat and that there were no objective grounds on which it could be said that Mrs Clark would have failed against Adept. The court noted that the award of costs is subject to the myriad circumstances of the case, including the conduct of the proceedings. Given that the resolution in this case was made by the court rather than through the withdrawal of the proceedings, the court concluded that it was appropriate to grant leave to discontinue without prejudice. However, the court ordered that the second respondent, Adept, pay the costs of the plaintiff's amended notice of motion.